In Courchene v. Carleton University Students' Association, Inc. (released May 2016) Ray, J. of the Ontario Superior Court of Justice overturned the internal decision of a student association, with the result that the student who received the greatest number of votes in a campus election was not disqualified and was accordingly reinstated to his elective office.
In January 2016, the Carleton University Students' Association (CUSA) held an election for various positions within the association. The applicant, Courchene, received the highest number of votes among candidates for the office of Vice-President Student Services. The co-respondent, Hailekiros, came second.
On election day, a third student, Gitteh, independently entered a classroom and addressed the class to vote for Courchene. There was no evidence that Courchene encouraged or even knew about the campaigning on his behalf.
Nevertheless, invoking the election rules against campaigning, the chief electoral officer disqualified the entire slate of candidates, including Courchene. On an internal appeal, CUSA's electoral board found that there was no merit to the complaints and ordered that the slate (including Courchene) were not disqualified. On further internal appeal, the constitutional board of CUSA upheld the electoral board's decision but disqualified the entire slate for a new and different reason that was not part of the original complaint, namely that the student candidates had violated another section of the election rules that prohibits candidates from having voters use the candidate's own computer or other electronic device when voting. Again the entire slate, including the applicant, was disqualified from assuming office.
Justice Ray held as follows:
● It was open to the applicant to seek judicial review of an internal decision of the association's constitutional board, even though it is a private tribunal.
● The court's review is limited to whether the tribunal:
● exceeded its jurisdiction or acted contrary to its rules; or
● acted in bad faith; or
● acted contrary to the rules of natural justice.
● It is not the function of judicial review to re-hear the evidence and decide how the matter ought to have been decided.
● In this case, the constitutional board exceeded its jurisdiction in defining the offence beyond the language of the election rules, which seriously expanded the written policy.
● Accordingly, the decision of the constitutional board to disqualify the applicant was set aside and the applicant was reinstated to his elected office.
3. Key Observations
This is a remarkable case in that there were a total of four decisions on the disqualification issue and each decision reversed the decision before it. In the end, the election result was reinstated. The court's decision reversing the CUSA constitutional board's decision turned on the factual finding that the electoral rules at the time of the election did not forbid a candidate from having another student vote using the candidate's personal computer to other technology. The court could also have found that the applicant had not been given notice of this charge and that, therefore, the constitutional board's decision failed to comply with the rules of natural justice.
While it appears that the court was uncomfortable with the notion of disqualifying a candidate because of another student's conduct, it accepted that disqualification of a candidate in such circumstances was a well-known practice and had been imposed for serval years to encourage compliance with the election rules. It doubtless weighed on the court that the effect of disqualification was to invalidate votes cast by more than 2,340 students at Carleton.